LEX/BDAD/0073/1987

Equivalent/Neutral Citation: 40 DLR(AD) (1988) 75

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Appeal No. 5 of 1986
Decided On: 07.07.1987
Appellants: Mir Abdul Ali
Vs.
Respondent: Md. Rafiqul Islam Khan
Hon'ble Judges/Coram:
Badrul Haider Chowdhury, Shahabuddin Ahmed, M.H. Rahman and A.T.M. Afzal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kamal Hossain, Senior Advocate instructed by
Shahabuddin Ahmed, Advocate-on-Record
For Respondents/Defendant: Md. Nurul Huq, Advocate-on-Record
JUDGMENT
Badrul Haider Chowdhury, J.
1. This appeal is directed against the judgment and order of the High Court Division in
Civil Revision No. 720 of 1984 reversing the concurrent judgment of the Munsif, 4th
Coon, Narayanganj and of the Subordinate Judge, 3rd Court, Dhaka. Respondent filed
Title Suit No. 355 of 1976 for mere declaration of his title to the suit land and by
subsequent amendment of the plaint he prayed for permanent injunction.
2 . The trial court dismissed the suit and found that the "plaintiff never had got the
possession of the suit land. It was noticed that the plaintiff claimed to have purchased
the suit land at a consideration of Tk. 3,000/- on 8.7.1974 but on evidence it was
established that the defendant entered into agreement to purchase it at a consideration
of Tk. 8000/- on 30.12.72. It was observed: "that he got the delivery of possession of
the suit land just after execution of the bainapatra in his favour in 1972". In this view of
the matter the trial court dismissed the suit On appeal the Appellate Court below noticed
that the plaintiff introduced a new story that his father possessed the land before his
purchase as breather of Alauddin Bhuiyan. But the evidence shows " he was silent about
his dispossession in the 1st petition for amendment of the plaint." Whereas from the
evidence of the plaintiff it appeared "that he was dispossessed from the suit land on the
date of filing of the suit" In view of the evidence, the Appellate Court dismissed the
appeal.
3. In revision the Single Bench of the High Court Division set aside the judgment and
decree of the courts below and decreed the plaintiffs suit with direction to give him
possession on eviction of the defendant appellant and accordingly, made the rule
absolute.
4. Leave was granted to consider the question when the possession of the defendant is
established and when the evidence was led to show that the plaintiff himself was
present at the time of negotiation of sale to the defendant whether the High Court

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Division was correct in reversing the concurrent finding of fact, which showed that the
defendant entered into possession after the execution of the bainapatra dated
30.12.1972. Whereas the plaintiff claimed by a document dated 8.7.1974 and the suit
was brought in 1976. Incidentally the question was raised whether on the principle of
section 53A of the Transfer of Property Act the defendant is protected.
5. Dr. Kamal Hossain, learned Counsel appearing for the defendant- appellant submitted
that the High Court Division erroneously overlooked that the title of the defendant
related back to 30.12.72 the date of execution of the deed of agreement for sale
(bainapatra) followed by delivery of possession on receipt of the earnest money as per
terms of the agreement for sale. Dr. Kamal Hossain argued that it was not the question
of competition of the sale deeds as to which one will prevail over the other as
considered by the learned Single Judge. It was submitted that the positive and
consistent case of the defendant appellant was that his purchase being earlier on the
basis of the bainaptra accompanied with the delivery of possession; right, title and
interest in the suit land devolved upon him on the day of execution of the bainapatra
and the plaintiff would not acquire any right, title, interest and possession by his
subsequent and collusive deed of purchase.
6 . It is true that the document of the defendant was registered later in 197S, but the
finding of fact of the two Courts below was that the defendant was in possession of the
suit land since 30.12.72 in pursuance of the bainanama.
7. Dr. Kamal Hossain, learned Counsel next argued that the equitable principle as laid
down in section 53A of the Transfer of Property Act is available to the appellant, in view
of the fact that in part performance of the contract the appellant took the possession of
the suit land and the contract was finally concluded by registration of the sale deed by
the vendor on receipt of the balance consideration money.
8. Mr. Md. Nurul Huq, learned Counsel appearing for the plaintiff-respondent, attempted
to argue that the bainapatra was created for the purpose of anticipated suit against the
appellant and further submitted that in the alleged agreement it was not mentioned that
possession was delivered to the appellant on the execution of the agreement.
9 . There is no substance in this contention. The agreement was found genuine by the
two Courts below. Even the learned Single Judge did not question it. As for the second
part of the contention it is not the requirement of law that the bainapatra must mention
that possession was delivered in pursuance of the agreement.
10. Mr. Md. Nurul Huq further argued that equitable principle as can be found in section
53A of the Transfer of Property Act cannot have any application, in view of the fact that
it is the Registration Act that determines the issue when mere is competition between
two contending parties on the basis of two deeds and since the plaintiffs document was
registered earlier in point of time the deed of the plaintiff will prevail over that of the
defendant
11. On his own showing section 47 comes into play and that is the complete answer to
the contention, namely, that though the plaintiff's document is earlier in point of time as
because it was registered in 1974 and the defendant's document was registered later in
1975, but the defendant's document relates back to the bainapatra dated 30.12.72 and
in pursuance of which the document of the defendant was registered by the vendor.
Hence it is the defendant's document that will prevail of the plaintiff's document and the
defendant is in possession which was established on evidence.

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12. It is well settled that in the case of successive transfers of the self-same property in
favour of different persons by a common vendor by registered documents, the dispute
as to the precedence of one document over the other is to be determined in accordance
with the principle laid down in section 47 of the Registration Act. That section provides:
"A registered document shall operate from the time from which it would have
commenced to operate if no registration thereof had been required or made,
and not from the time of its registration."
It is clear that a document that has been registered relates back to the date of its
execution and when the question of title as between the two contestants claiming on the
basis of successive documents executed by the self-same vendor must be determined
with reference to the tide to the latter on the date of execution and not of registration.
13. In the case of Fazar Ali and another Vs. Afzal Mia and others 9 DLR 258 Immam
Hossain Chowdhury, J., posed the question :
"Suppose a man purchases a property 'A' on the 7th of a month and another
man purchases the self-same property on the 9th of the month and the first
man got the kabala registered on the 13th and the second man got that kabala
registered on the 12th of the month. Now the question arises which document
will prevail. There is no doubt the answer would be that the kabala which was
executed earlier would prevail over the kabala executed later, though registered
earlier. So, the date of registration is not a criterion for the purpose of
determining when the sale takes effect though without registration certain
transactions may be perfected."
14. The dictum of Immam Hossain Chowdhury, J, was doubted by a learned Single
Judge and he felt that Fazar Ali's case should be reexamined by a larger Bench. On
reference made by him the case was referred to a Division Bench (Jainullah and another
Vs. Anu Mia and others LEX/HEPK/0149/1962 : 15 DLR 77) before Hasan and Ali, JJ. In
that case it was contended that a purchaser who has perfected his title by his document
registered acquires an indefeasible title as against anyone claiming under a document
registered on a later date, even though that might have been executed earlier. This
contention was repelled by the Division Bench and reliance was placed in the case of
Jeo Narayan Matho vs. Budhan Matho and others AIR 1941 Pat 247 when a Division
Bench considered the same question and Harris, C.J., observed:
"Where a land is sold to A by executing a sale deed which is unregistered and
subsequently the same land is sold to B by registered deed, and sale deed
executed in favour of A is registered after sale in favour of B, the sale deed in
favour of A operates not from the date of its registration but from the date of its
execution. Hence sale in favour of B which is subsequent to execution of sale
deed in favour of A does not give B good title against A."
15. The Division Bench came to the conclusion that section 47 is intended to safeguard
the interest of a bona fide vendee under an instrument, which though only executed is
waiting registration by ensuring that he is not deprived of the property in case of his
vendor turns round to take advantage of the fact that the said instrument is still
unregistered and executes a fresh kabala and gets it registered as well purporting to
convey the self-same property in favour of another. It was observed that any contrary
view would mean defeating the very purpose of section 47.
16. As it has been noticed already in the present case the defendant appellant entered

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into an agreement to purchase it on 30.12.72 and got the delivery of possession of the
suit land immediately after execution of the bainapatra in his favour in 1972 whereas
the plaintiff claimed to have purchased at a much lower figure, namely, for Tk. 3,000/-
the self same land on 8.7.74. The question was which of the two documents will
prevail. Both the Courts below dismissed the suit. But in revision the learned Single
Judge M-A. Hossain, J, set aside the judgments and decrees of the Courts below and the
learned Judge considered that section 53A was not available to the defendant, inasmuch
as no such case was made out in the written statement. It was overlooked by the
learned Judge that on the showing of the plaintiff himself the defendant was in
possession of the suit land in furtherance of his bainapatra. The equitable principle as
given in section 53A can be invoked by the defendant for protecting his possession but
since the defendant is protected by the provision of section 47 of the Registration Act,
this point needs no further consideration. In the result, the appeal is allowed. The
judgment of the High Court Division is set aside and those of the Courts below are
restored. There will be no order as to costs.
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